Re McCARTHY (LAND R FOLIO 60352)
1984 WJSC-CC 2463
REAL PROPERTY: incumbrance
Judgment delivered by Mr. Justice McWilliam on the 27th July 1984
This matter has come before the Court on a reference by the Registrar of Titles pursuant to section 19(2) of the Registration of Title Act, 1964, upon an application by Christine McCarthy, the registered owner, for the cancellation of a judgment mortgage registered on the folio on 22nd. July, 1983, the judgment creditor being John McCarthy, a brother-in-law of Christine McCarthy. The folio contains a note that the amount of the judgment was stated to be £79,058.60 and that, as between such burden and any lien on the property created by deposit of the Land Certificate prior to the date of the registration of the judgment mortgage, the judgment mortgage ranks in priority after such lien.
Christine McCarthy was married to Patrick, Gabriel McCarthy in England on 8th. September, 1973. Subsequently Patrick Gabriel and McCarthy purchased the land and was registered as full owner on the folio on 3rd February, 1975. The lands comprised about one and one third acres on which there was a dwellinghouse known as Eldon House. The husband and wife lived in the house with their two children and it became their family home.
Patrick Gabriel McCarthy became an alcoholic and was frequently a patient in St. John of God's hospital between 1980 and 1983.
In 1981 Christine McCarthy brought proceedings against her husband, and, on 19th February, 1982, an Order was made that she should continue to live in the family home and it was noted that her husband undertook to remain away from it. Various provisions were made as to custody and access and Patrick Gabriel McCarthy was ordered to pay maintenance at the rate of £150 per week.
On 3rd June, 1983, the husband and wife entered into a separation agreement whereby the wife agreed to support and maintain herself and the children and to abandon all her various statutory rights against her husband and he agreed to convey the house and premises to his wife. The wife also agreed, with the consent of the Court, to withdraw all proceedings whether for divorce a mensa et thoro or otherwise. Clause (m) of the agreement provided as follows: "Whereas and from the date hereof the wife irrevocably undertakes to pay and discharge all existing debts and liabilities together with all debts and liabilities incurred by her after the date hereof in respect of the said dwellinghouse, land and hereditaments attaching thereto and will at all future times indemnify and keep indemnified the Husband against all actions, proceedings, claims, demands, costs, damages, losses and expenses...
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